November 13, 2008
With the election of Barack Obama, and strengthened Democratic majorities in both houses of Congress, it seems likely that among the changes we can expect, expansion of federal labor and employment law is coming. Among the changes employers should expect (and start preparing for) are:
The Employee Free Choice Act (EFCA)
The EFCA would be the most wide-ranging revision to federal labor law in 50 years. In the last Congress the EFCA passed in the House, but was blocked in the Senate. The EFCA remains the number-one priority of organized labor. The political battles over the EFCA will come early and be loud.
The EFCA would make three major changes to the current law:
| 1. | Require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than the secret ballot election that has been in use for decades. |
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| 2. | Require employers to submit to binding arbitration of first contracts with the new union after only 90 days of bargaining and 30 days of mediation. |
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| 3. | Impose stiff penalties on employers for violations of the Act including court imposed restraining orders, treble back pay damages, and civil fines up to $20,000 per violation.
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All three of these provisions worry businesses (and their labor lawyers). Rather than secret ballot elections, where employees can vote their conscience in private, unions may become certified on the basis of authorization cards, gathered by union organizers in one-on-one meetings, with all the attendant potential for intimidation or coercion. The union will be certified if 50% plus one of workers in an appropriate unit sign cards.
The other provisions of the EFCA are equally troubling. Entering into a first collective bargaining agreement is hard - with both parties bargaining in good faith, trying to adapt existing policies and practices for employees who had not been covered by a union contract before can take substantial effort. The EFCA would require that it be done in as little as 120 days, or an arbitrator may impose a contract on the parties for two years. Finally, the EFCA would expose employers to treble damages for allegedly discharging or discriminating against workers because of their union activities, civil fines of up to $20,000 per violation for "willful or repeated" violations, and increased use of injunctions.
The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers
The so-called "RESPECT" Act would reverse the NLRB’s recent rulings that clarified the requirements to be a "supervisor" under federal labor law. RESPECT would dramatically increase the number of employees who could unionize.
The Paycheck Fairness Act and the Equal Remedies Act
These statutes—competing versions to address the same issue—would reverse the U.S. Supreme Court’s recent Ledbetter ruling addressing the statutes of limitations under Title VII. Both would enable plaintiffs to press viable claims going back much further in time.
The Civil Rights Act of 2008
The proposed amendments to the civil rights laws would make numerous changes including removal of damage caps on sex, religion, and disability discrimination, as well as retaliation lawsuits.
The FOREWARN Act
This amendment to WARN would increase the notice period for plant closings or mass layoffs from 60 to 90 days.
Other Campaign Promises
President-elect Obama has also expressed his support for raising the minimum wage to $9.50 per hour by 2010, for expanding the Family and Medical Leave Act to cover companies with 25 or more employees (currently 50), and for expanding federal discrimination laws to include sexual orientation as a protected class.
If you would like to discuss these developments, or any other employment law issue, please contact your Stoel Rives attorney. For a list of attorneys in the Labor and Employment group, click here.
Stoel Rives LLP is a business law firm providing corporate and litigation services to a wide range of clients throughout the United States. The firm has nearly 400 attorneys operating out of 12 offices in eight states. For more information, visit www.stoel.com.
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